Will the Protecting Victims Act live up to its name?

Bill C-16 is the federal government’s major overhaul of the Criminal Code, with provisions to confront the rise in coercive control and intimate partner violence. Its short title is the Protecting Victims Act, but can it live up to its name?

While victim advocates have applauded some measures in the proposed legislation, critics say other areas overstep and may lead to longer court delays and impede pathways to justice.

Overall, it's a mixed bag.

“This bill has some good things in it for sure, but it's got some very troubling things in it for both sides — the accused as well as the survivors, the victims,” Simona Jellinek, senior counsel at Gluckstein Lawyers in Toronto, and leader of the firm’s sexual abuse and assault team, tells Verdicts & Voices host Alison Crawford.

Part of the problem isn’t the Act itself, but the institutional framework we have in place. She says we don't have the judicial or institutional resources to mandate some of the lofty goals set out in the legislation.

The 200-plus page bill includes new mandatory minimum sentences, creates new criminal offences, and increases penalties for sexual crimes. If passed, it would amend the Criminal Code to classify killing driven by hate, including in cases of intimate partner violence, as first-degree murder.

Melanie Webb, chair of the CBA’s Criminal Justice Section and a criminal trial and appellate lawyer at Webb Barristers in Toronto, says Bill C-16 provides clarity on the use of restorative justice and alternative measures or diversion when matters are dealt with outside of the traditional court system.

“When you sort of think about concerns about delay and overburdened court dockets, potentially the use of alternative measures and restorative justice might have the effect of reducing that burden on court dockets,” she says, noting it could see appropriate cases diverted.

Jellinek says many people don't want to go through the criminal justice system because it isn’t particularly victim-friendly.

“For a lot of people, even from a cultural perspective, having an alternative that still provides them with some measure of how they define justice, I think, is very important.”

A potential game-changer proposed in the bill could alter how sexual assault cases are prosecuted, and not necessarily in a way that makes the process easier on complainants. It would change the records regime provisions, specifically the threshold for defence access to a complainant’s therapeutic records. The defence would be required to establish that the records contain evidence that “could raise a reasonable doubt as to the accused’s guilt.” The current standard requires the defence to establish that the records are “likely relevant” to an issue at trial. 

The proposed change has Webb and Jellinek concerned.

“We don't dispute that therapeutic records should be treated differently from other types of private records, but we're concerned that the way these provisions in the bill are drafted, the standard on admissibility might be a frankly impossible standard to meet,” Webb says.

“When you look at the language about the standard for production, the stages of production and admissibility…that could lead to confusion (and) potentially more protracted litigation.”

Jellinek says the concern when discussing the disclosure of these records is that someone can be speaking to a therapist, thinking it's confidential, and say many different things because that's what's going on with them at that moment. But then they’re not really confidential because they can be presented in court.

“It's difficult to not only understand why they're necessary, but it starts to break down the trust between the person who's been hurt and the institutions that they deal with.”

The bill also criminalizes coercive controlling behaviour within an intimate partnership. Jellinek says while it’s a difficult concept to unravel in some situations, the inclusion is an important acknowledgement of how abuse can unfold.

Webb says coercive control is a newer concept for criminal practitioners because it doesn’t currently exist in the Criminal Code.

“We recognize that the intent is to respond to what we acknowledge is a crisis of gender-based violence…It is an attempt to address the harm that this kind of conduct causes to victims.”

However, there are concerns with how the offence is worded, which were expressed in the Canadian Bar Association’s C-16 submission to the federal government.

“To be clear, we're not necessarily opposed generally to introducing an effect that's meant to capture a pattern of abusive conduct. What we're concerned about is that the language is vague and overbroad,” Webb says, noting it could capture conduct that doesn’t fall under the harm contemplated.

“When you include conduct such as threatening to die by suicide or to self-harm, and when you're suggesting that that can be considered as an act that could form part of a pattern of coercive control and conduct, in some circumstances, I acknowledge that could be seen as a manipulation tactic, but there's a risk of criminalizing conduct that really may be more of a mental health issue and treating the conduct in this way could be unfair.”

Jellinek sees it differently.

“There are situations, obviously, that can be a mental health issue and should be addressed in a mental health situation with the accused. But it does not change how those kinds of words affect the victim,” she says.

“The results on the victim are exactly the same, whether it's a mental health issue or … a manipulation issue.”

Tune into the full episode to hear more about new sentencing proposals for manslaughter convictions and how Bill C-16 could affect the Jordan decision and stay of proceedings.